Lisa Meeker Love v. Wal-Mart Stores, Inc. and Besam Automated Entrance Systems, Inc. ( 2006 )

Opinion filed October 26, 2006

Opinion filed October 26, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-05-00121-CV

                                                     __________

                                    LISA MEEKER LOVE, Appellant

                                                             V.

                 WAL-MART STORES, INC. AND BESAM AUTOMATED

ENTRANCE SYSTEMS, INC., Appellees

On Appeal from the 199th District Court

Collin County, Texas

Trial Court Cause No. 199-2650-02

M E M O R A N D U M   O P I N I O N

Lisa Meeker Love sued Wal-Mart Stores, Inc. and Besam Automated Entrance Systems, Inc., alleging that she was injured as she entered the Wal-Mart store in Plano.  She claimed that the automatic sliding door manufactured by Besam closed on her, causing her injuries.  The trial court granted no-evidence motions for summary judgment filed by Wal-Mart and Besam.  In her first point of error, Love asserts that, after Wal-Mart and Besam filed their motions, she filed an amended petition alleging a new claim based on the doctrine of res ipsa loquitur and that the no-evidence motions for summary judgment did not address that new claim.  In her second point of error, Love asserts that she raised fact issues in response to the no-evidence motions.  We affirm.

Standard of Review

We will apply the well-recognized standards of review for summary judgment.  We must review a no-evidence summary judgment under the same standard as a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003).  Accordingly, we examine the record in the light most favorable to the nonmovant and disregard all contrary evidence and inferences.  Id.; Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002).  A trial court must grant a proper no-evidence motion for summary judgment unless the nonmovant produces more than a scintilla of probative evidence to raise a genuine issue of material fact.  Tex. R. Civ. P. 166a(i); Wal-Mart, 92 S.W.3d at 506.

Res Ipsa Loquitur

Love states in her first point of error that her amended petition included a new claim based on res ipsa loquitur. Because Wal-Mart and Besam did not file new motions for summary judgment that addressed the new claim, Love contends that the trial court erred in granting the summary judgments.  Neither Wal-Mart nor Besam was required to file a new no-evidence motion for summary judgment to address Love=s assertion of res ipsa loquitur.

Love=s assertion of the doctrine of res ipsa loquitur was not a separate cause of action from the negligence claim in her initial petition.  Res ipsa loquitur is a rule of evidence whereby negligence may be inferred by the jury.  Haddock v. Arnspiger, 793 S.W.2d 948, 950 (Tex. 1990).  The doctrine applies only if two factors are proved: (1) the character of the accident is such that it would not ordinarily occur in the absence of negligence and (2) the instrumentality causing the injury is shown to have been under the management and control of the defendant.  Id. at 950.  As will be discussed under the second point, Love produced no summary judgment evidence showing that her accident was such that it would not ordinarily have occurred in the absence of negligence.  Love=s first point of error is overruled.

    Fact Issues Were Not Raised

In Love=s second point of error, she claims the following:  (1) Wal-Mart and Besam owed a legal duty to her; (2) they each breached that duty; and (3) her damages proximately resulted from those breaches.  Love asserts that Wal-Mart had a legal duty to maintain its premises in a reasonably safe condition and that, because the automatic sliding door was not in good working order, Wal-Mart breached its duty to her. Love=s testimony that the door malfunctioned did not constitute any evidence that Wal-Mart or Besam breached a duty owed to Love.

Love was Wal-Mart=s invitee.  Wal-Mart owed her a duty to exercise reasonable care to protect her from dangerous conditions in the store that Wal-Mart knew about or should have known about.  Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998).  To recover damages in this premises liability case, Love had to prove:

(1) Actual or constructive knowledge of the condition of the automatic entrance door;

(2) That the condition posed an unreasonable risk of harm;

(3) That Wal-Mart did not exercise reasonable care to reduce or eliminate the risk; and

(4) That Wal-Mart=s failure to use such care proximately caused Love=s injuries.

Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983).

Love has not challenged the trial court=s order striking her summary judgment evidence; thus, Love has no evidence in opposition to the no-evidence motions for summary judgment.^[1]  But even if there had been no objections to her evidence in response to the motions, Love=s evidence did not create a fact issue.

An owner or occupier is not liable for deterioration of its premises unless it knew of or by reasonable inspection would have discovered the deterioration.  CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000). Love provided no evidence as to what a reasonable inspection by Wal-Mart would have revealed. Love provided no evidence that the character of this accident was such that it would not ordinarily occur in the absence of negligence, a requirement for the doctrine of res ipsa loquitur to be applicable.

Love provided no evidence concerning how Besam was negligent in its design, manufacture, or marketing of the door.  Love provided no evidence as to why or how the door allegedly malfunctioned.  Love=s second point of error is overruled.

This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

October 26, 2006

Panel consists of:  Wright, C.J., and

McCall, J., and Strange, J.

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^[1]The trial court sustained Wal-Mart=s and Besam=s objections that (1) Love attached her deposition transcript to her response but failed to specifically reference by page or line number portions thereof and explain the relevance of the attached testimony and (2) Love=s evidence contained inadmissible hearsay.